Bailey and Bailey
[2012] FMCAfam 79
•11 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAILEY & BAILEY | [2012] FMCAfam 79 |
| FAMILY LAW – Children – parenting orders – interim orders – appointment of Independent Children’s Lawyer – wishes of the child – suspension of earlier parenting orders made by Family Court of Australia on 28 February 2000. |
| Family Law Act 1975, ss.11C, 11F, 61DA, 68L, 121 |
| Applicant: | MR BAILEY |
| Respondent: | MS BAILEY |
| File Number: | SYC 7646 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 January 2012 |
| Date of Last Submission: | 11 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hanna |
| Solicitors for the Applicant: | J A Brown & Co |
| Duty Solicitor for the Respondent: | Ms Finn |
ORDERS
UNTIL FURTHER ORDER
Orders 1 – 17 of the Orders made 28 February 2000 be suspended.
UNTIL FURTHER ORDER the child [X] born [in] 1997 is to live with the Father.
As provided by s.11F of the Family Law Act the parties are to attend a Child Dispute Conference with a Family Consultant at 9:00 am on 25 January 2012 and pursuant to s.11C of the Act the conference is to be child-inclusive and reportable.
That as provided by section 68L of the Family Law Act 1975 the interests of the child [X] born [in] 1997 is to be independently represented by a lawyer and Legal Aid NSW is requested to arrange such representation.
The parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed within fourteen (14) days from the date of these Orders.
The Respondent Mother is to file and serve a response and an affidavit stating the facts upon which she seeks to rely upon by within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Bailey & Bailey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7646 of 2011
| MR BAILEY |
Applicant
And
| MS BAILEY |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application by the Father of a child called [X], who is a girl, born [in] 1997. She is within a few weeks of reaching the age of 15 years.
On 23rd February 2000, Rowlands J in the Family Court made a number of parenting orders which provided that [X] and her elder brother and elder sister should reside with the Mother. His Honour made further orders about relocating to Brisbane, parental responsibility in the terms that it was used in those days, contact between the children and the Father, costs of transportation, suitable clothing, notification, attending on a counsellor of the Family Court, advices to telephone numbers and matters of that nature, and restraint on changing the surnames of the children or changing their religious denomination or instruction, and other matters of that nature.
A lot has happened since then. The two elder children, the subject of the orders, are now adults. The orders do not apply to them. The orders only apply to [X].
On the Father’s case, the Mother asked him in an email to take [X], presumably to live with him, for the rest of her schooling. A printout of that email is annexed to the Father’s affidavit of 8th December 2011. Since then, and, in fact, shortly after that email, [X] left the care of her mother, and there are perhaps differing versions as to how that occurred, and in due course came to stay in the Father’s residence in Sydney.
The Mother now resides in Sydney. The Father says that it is the child’s wish that she remain living with him until she becomes an adult and he has arranged to enrol her in a school in Sydney. The Mother has a different account to give, although at this stage she has not been able to file a Response or prepare and file an affidavit setting out the facts that she relies upon. The Mother was represented on a duty basis by a solicitor from Legal Aid New South Wales on Monday when the matter was returnable before the Court, and is represented on a duty basis by a solicitor from Legal Aid, New South Wales, today.
The Mother has applied for legal aid but, at this stage, that application has not been finalised one way or the other. What has happened is that as a result of an order of the Court, the parties attended a child dispute conference with a family consultant. That took place yesterday and a family consultant memorandum has been made available to the Court and to the parties. It is an extensive document and it raises a number of issues. The family consultant sets out the differing views of the parties and sets out that the Mother told the family consultant that she believed that the Father had contravened the previous orders and retained the child in his care without her consent.
The Mother is of the view that the child’s wishes should be made clear. The parties agree that this is a case where the child’s interests should be independently represented by a lawyer under the provisions of section 68L of the Family Law Act, and that is an order that will be made today. Because of the age of the child, she is capable of setting out her views and an Independent Children's Lawyer will be of great assistance to the Court in ascertaining those views in a way that is acceptable under the Family Law Act.
Family consultant has also raised the question that a child inclusive child dispute conference may be of assistance. I am firmly of the view that that is the case. Again, [X] is of an age where she could express her views clearly to a family consultant and, where appropriate, child inclusive child dispute conferences can be beneficial to the Court and of use to the parties themselves. I propose to make that order under the provisions of section 11F of the Family Law Act. Again, under the provisions of section 11C, I would wish that to be reportable.
At this stage, no appointment has been made for a child inclusive child dispute conference, but those arrangements can be made today. It is likely that such a conference can take place within the next couple of weeks or so. It is more likely that the child inclusive child dispute conference will be able to take place before an Independent Children's Lawyer is available to assist the Court. In my experience, even though Legal Aid New South Wales processes these matters promptly, it is usually advisable to allow a period of approximately four weeks for that to be done.
I would think that the current holiday season, when a number of lawyers are still on holidays, would certainly indicate that the Court should allow some four weeks to take place. I do intend to bring this matter back to court in February once a child inclusive child dispute conference has taken place and once an Independent Children's Lawyer is available.
The Mother, in the circumstances, has asked for a period of four weeks to file and serve a response and an affidavit setting out the facts upon which she seeks to rely, and, in the circumstances, I consider that to be a very reasonable request. I propose to grant that application.
What needs to be decided at this stage is what is to happen in the meantime or perhaps what is not to happen. Counsel for the Father has prepared a short minute of interim order seeking:
a)a suspension of Orders 1 to 17 of the orders made in the Family Court on 23 February 2000;
b)that he be permitted to relocate the child, [X], to Sydney;
c)that [X] should live with him;
d)that she should telephone the Mother each Wednesday;
e)that the Mother be restrained from communicating information provided to her by the Father or the Father’s solicitor to any third parties, except for the purpose of obtaining legal advice; and
f)the child should continue to attend the [omitted] School.
Ms Finn who appears for the Mother today on a duty basis has submitted that her client does not agree with those orders and says that a number of them are unnecessary.
Ideally, the Mother would like orders made restoring the situation so that the original orders made in the Family Court in February 2000 should continue, perhaps with some alterations as the Mother is now living in Sydney. However, Ms Finn conceded that her client realised that in the short term, whilst an Independent Children's Lawyer was being appointed and while a child-inclusive child dispute conference was taking place, that the Court may not see that such a proposal should be followed at this stage.
The Mother is not of a view that there is a need for there to be an order permitting the Father to relocate the child, [X], to Sydney. [X] is here. The parties are here. She does not want an order at this stage prescribing that [X] live with the Father. She says that there is no need for an order about [X] telephoning her at a specific time on a specific day. The child has her landline telephone number and should be in a position to telephone her mother at any time.
As to an injunction restraining the Mother from communicating information to third parties, whilst there was an email from the Mother, dated 23rd December, addressed to the Father’s solicitor and rather curiously addressed to a number of other people, including one Mr M, who I believe is the editor of the Australian newspaper, the Mother now is of the view that as the matter is before the Court, it would be inappropriate for any such communications to take place. Indeed, it would. It would be a breach of section 121 of the Family Law Act and the Court would take a very serious view of communications to third parties.
There is no need, and it has been submitted, the Court to make an order restraining a party from doing something that was forbidden by law. At this stage, also, the Mother opposes the order the Father seeks that the child continues to attend the [omitted] School.
Ms Hanna who appears for the Father submits that these orders are necessary to provide for some degree of certainty in the child’s life. The Father, she submits, needs to be protected from a possible contravention application and the child needs to have some security knowing where she is going to be.
I take all those matters into consideration. The best interests of the child remain the paramount consideration. The Court determines what is in the child’s best interests by considering the matters in subsections (2) and (3) of section 60CC of the Family Law Act.
Subsection (3) includes the views of the child and the weight that should be given to the views of the child, subject to the child’s age and level of maturity. That, to my mind, is one of the important factors in this case. The matter will come back before the Court in February once the child inclusive CDC has taken place and when an Independent Children's Lawyer has been appointed and is in possession of the applications, responses and affidavits filed by both parties. At this stage, the Mother quite obviously has not prepared those documents but will do so within the next four weeks.
What then is to happen in the meantime? It would not be in the best interests of this child for her to go from one residence to another and back again over the next four weeks or so. She has been living with her father in Sydney certainly from about the end of September and has been attending school. There has not been an application filed to my knowledge to this date requiring that state of affairs to change, certainly not by the Mother. The Father has commenced these proceedings but did not do so, I note, interestingly enough, until 23rd December. So from the end of September and until almost Christmas time, nothing happened, at least from a legal point of view.
Until the Court has more information, based on seeing the Mother’s material when it is filed, seeing any family consultant memorandum arising from a child-inclusive child dispute conference, and hearing submissions from the Independent Children's Lawyer when appointed, it would not be appropriate to make any orders other than to cover the immediate situation. Right at this stage, however, it is clear that the orders made by the Family Court as they relate to this child are not appropriate.
Whether they are going to be appropriate in the future is another matter, but at this stage, and over the next four weeks or so, not one of them is appropriate and I propose to order that orders 1 to 17 inclusive made by the Family Court of Australia on 23rd February 2000 are to be suspended.
It follows that I do not need to make any order about relocating the child to Sydney. She is here. The parties are here. For more abundant caution, I will make an order until further order that the child, [X], live with the Father, but that, as I have said, is an order until further order.
I am not persuaded of the necessity to make an order requiring that the child telephone the Mother, bearing in the mind the submissions made on the Mother’s behalf. I am not satisfied that there is a need for an injunction restraining the Mother from communicating information to third parties in breach of section 121 of the Family Law Act. The law is the law. People are expected to obey it. As to the question of the child’s school, I am not persuaded that, in the immediate period of time, there is any particular need for an order to be made.
School goes back at the end of January. The Court will be looking at this matter in February. At that stage, when the matter comes back before the Court all that information is available, the Court will consider what orders should be made in the best interests of the child.
I am, of course, making parenting orders and I am required under section 61DA of the Act to consider the presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. In the immediate circumstances, and with the lack of information before the Court, noting that I only have evidence setting out the facts as they are known to the Father, in my view, it is inappropriate for the Court to make any interim order about equal shared parental responsibility. Again, it is a matter that can be looked at when the matter comes back before the Court when that information is available.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 31 January 2012
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